Sigh. Time for an update on Trump’s legal cases. Let’s speak truth, not untruth – as is so common – about this. Let us address two decisions rendered in December – one early by a DC district judge on Trump’s “presidential immunity” from criminal prosecution for his January 6th speech, the other later by a three-judge panel of the DC circuit court on civil immunity, also part of Jack Smith’s wildly overreaching case.
First, on December 1, Democrat-appointed federal DC district court judge Tanya Chutkan found, perhaps not surprisingly, that even if Trump’s January 6th speech was an “official act,” his 1st Amendment claim to “free speech” did not hold, as words spoken were a crime; his 5th Amendment right not to face “double jeopardy” based on impeachment did not hold, as he can be prosecuted criminally after office; and his 5th Amendment “due process” claims did not hold because, using circular logic, the law “forbids” his words.
Second, we get the DC circuit court decision – three judges, an Obama, Clinton, and Trump appointee – which the media declares “denied Trump presidential immunity” on the civil side, arguing his speech may not have been an “official act” as president, so that question must still be litigated.
If this sounds both confusing and rather twisted, it is. These decisions are both legally wrongheaded.
The first one, by a partisan Obama appointee, amounts to a conclusory finding about 1st Amendment rights, gutting the president’s free speech rights by concluding, ahead of time, that he committed a crime.
She then disposes of double jeopardy protection by saying – without analysis – impeachment does not foreclose prosecution. It may not, which means Biden is in trouble, but where is historical analysis? Absent.
Finally, she ignores the substance of Trump’s due process claim by saying, again without serious analysis, that the law “plainly forbids” his words. Who says? Where is due process? As in the impeachment, missing.
Net-net, that case is all politics, and that judge is all politics, which the ruling makes clear. Trump will have to suffer the rulings, plead his case, and look for relief for non-harmless constitutional violations later.
The other case, however, is interesting. The appellate court offered three concurring opinions, which did not deny Trump might have “presidential immunity” from civil prosecution. The media misreported the ruling. The ruling: He must prove the speech was an “official act” of a president, triggering immunity.
Plainly, the speech was a “matter of public concern,” since what could be more concerning for the nation than that election? The court says that is not enough; it must also be an “official act” of the president.
Okay, strong supporting arguments exist that it was “official” not “private.” The speech was almost certainly written by presidential speechwriters, as official speeches are, put on White House paper, printed there, practiced there, copies left there, perhaps aided by a government teleprompter.
The event, like hundreds of other “official” speeches given by presidents, senators, congressmen, and government officials was clearly on government property, the Ellipse, and tied to the federal process. No further voting was ahead, so status as a candidate versus a president tips to the president.
Finally, not pitching a specific criminal act, that speech expressly urged listeners to “peacefully and patriotically make their voices heard,” consistent with Mall protests since time immemorial.
In short, the first case will go forward, subject to later constitutional appeal, one basis for which may be partisanship of the bench, as in New York and Georgia. The second will go forward, immunity undecided.
Looking around several corners, what can we expect? A lot of distractions, lots of legal machinations intended to interfere with the presidential election, and lots of appeals as the legal process proceeds.
Saddest is the public confusion created by a Justice Department that improperly empowered a federal prosecutor, one known for trashing political opponents, and a federal bench timid about correcting it.
Eventually – and that is the operative word – these cases will end up before the US Supreme Court. Until then, that’s the update. Sigh.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
